8/5/2010

Where you come down on this will probably depend on your beliefs about gay marriage. But I’m not so sure the issues are identical.

It can be argued that the defendants had a right to challenge Walker for bias and did not. I’m not sure this argument is persuasive. For one thing, trying to have your judge removed from your case is like trying to assassinate the dictator: feel free to try . . . but if you fail, you’re in deep trouble. Anyway, if there was a problem with the perception of bias, it was there whether the parties raised it or not.

One could argue that a gay judge deciding this case is no different than a heterosexual judge deciding the case. But I think that argument misses the mark. With this decision (at least once the stay is lifted), Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday. The rights of a heterosexual judge would not have changed.

Still, if you see laws against gay marriage as discriminatory in the same sense that Jim Crow laws were, it’s tough to accept the premise that a gay judge could not ethically decide this case. (Yes, laws against gay marriage are not the same as Jim Crow laws. But that simplistic observation does not, without more, undercut the force of the analogy.) Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?

What if the judge had been a Mormon and ruled the other way? What would the gay marriage advocates say? Not that this proves that the judge should have recused himself. But if SCOTUS rules it constitutional, lets see how many will be fuming about Catholic judges.

First, dude, there is a big typo in the last post on this. You write “cones” instead of “comes” in the headline. We all do it.

Second, its useful to mention language of the code of judicial conduct on the subject:

> A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,

Note, you don’t have to believe he was biased, only that it can be reasonably questioned. (I am sure Patterico gets that, but that is for the benefit of everyone listening in.)

Also, there is this:

> the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

The judge doesn’t have a financial interest, but I think being able to marry your longtime lover counts as an “other interest.”

Now all that so far is just retreading what was said in the last thread. But you ask a good question: how is this different from a black person sitting in a case involving racial discrimination.

Well, first the racial discrimination related cases have a less direct benefit to the judge, very often. If you say duke power can’t use IQ tests to screen employees, well, the judge probably doesn’t ever want to work for a power company anyway.

But then what if the case was about, say, separate bathrooms. And let’s say the offending building is the very courthouse in which the judge works. So now he is deciding whether or not he has the right to enter the same bathroom as his white colleague.

Okay, but in that case, if he disqualifies himself, and a white judge steps in, then the white judge has to decide directly whether he will have to endure the presence of a black man in his restroom. Obviously to us, no big deal, but to many whites at the time of jim crow, yes that was a big deal.

So the answer is that both a white and black judge have equally direct stakes in the outcome. And when you get a situation where everyone’s impartiality can be reasonably questioned, then you stop worrying so much.

Or to take a less charged example there was the assertion someone made (I am not sure if it was on this site or another) that the “Republican justices” should have sat out in Bush v. Gore. The problem is that presumably every single judge on the bench cast a vote in the Presidential election, so if you eliminated every single person who expressed a preference on one candidate or another winning, who is left?

So we are not denying, in the case of a black judge ruling on Jim Crow, that his impartiality couldn’t be reasonably questioned. We are just saying that no one can pass the standard in that case, and when that happens, you frankly lower the standard.

Btw, I saw that Walker was appointed by Bush Sr. is there any relation between him and the Bushes? i ask because i know that judge John Walker of the 2nd circuit is Bush Sr.’s cousin, and yes was appointed by him.

I don’t say that to impugn anyone. For instance, John Walker is actually a really impressive guy. i had him as a professor with Guido Calabresi. He doesn’t love theory the way Calabresi does, but man, at the end of the course he took Calabresi’s fairly wild ideas and eviscerated them. It was a thing to behold.

I mean the other lawyers here can pipe up but most of the time, when you hear a federal judge talk it is really pretty sharp and you think to yourself, “i can see why he/she is a judge.” They are as a rule very, very good. To the point that the sheer crappiness of this decision here makes me wonder further about the impartiality. i have little doubt that if this case was about, say, a contract dispute, that Walker would have written a great opinion, which leads me to wonder why he wrote a laughably bad one.

At least now I get why so many conservatives opposed Sotomayor. It wasn’t because you wanted some color-blind society and feared it wouldn’t happen because of her “wise Latina” line; it’s because you believe it’s true! That judges are just part of tribes and will rule in favor of their “kinsmen” and you didn’t want some Latina up there making the rules.

Wow.

Oh, and Gerald, Judge Walker’s a libertarian Republican who is a pretty damn good judge from this lib’s perspective (he was certainly willing to protect my civil liberties before Congress immunized telecoms). He has a history of trying to keep the State out of moral choices.

The difference between Walker and the decisions made by almost any Justices on the current SCOTUS, especially the walking embarrassment that is Clarence Thomas, is that his decisions are legal, where as the eight current justices are almost all political hacks. In my opinion, Roberts is nothing but a conservative apparatchik and Alito is a bishop in a different robe. Only Scalia has an independent and thoughtful bone in his body and he is more than willing to sell those principles down the river to make a political decision when he wishes (see Bush v Gore, see failure to recuse himself in Cheney’s lawsuit, see comparing American torture policies to 24). A lawyer can respect Scalia, because he writes fun opinions and is generally consistent in non-political cases, but he’s been willing to do the Church’s bidding before.

So, yeah, given their history, only a fool wouldn’t mention the obvious biases which prevade their prior decisions. You should really make sure Anthony Kennedy is going to Mass regularly (he can really an apostate from the Roberts orthodoxy), although you still have a couple of years before the decision makes it through the 9th Circuit.

Ah, so you accuse patterico of racism, even though he specifically said that it shouldn’t apply when the judge is not white.

> It wasn’t because you wanted some color-blind society and feared it wouldn’t happen because of her “wise Latina” line;

Actually doesn’t her wise latina line raise a reasonable doubt as to her impartiality in any case involving women or hispanics, as plaintiff, defendant, witness or even as counsel? Not because she is latina but because she said something bigoted. And no, I don’t buy her walkback. She said it four times.

The rest of your comment is basically “OMG! The catholics are conspiring against us!” I thought President Kennedy put to rest fears that american catholics in public life would have their actions dictated by the pope.

If you acknowledge, as I do, that marriage, as a legal institution, is not ‘about’ love as such, but is rather a device for the orderly intake (from the in-laws), management, descent, and distribution (to the issue that the law presumes there will be), then it’s inaccurate even to say that the judge had no contingent financial interest in the outcome, one that a heterosexual judge would not have had.

In any event, it seems to me that even absent an immediate financial interest, the judge should have been subject to recusal under 28 U.S.C. § 455(b)(4) and/or 28 U.S.C. § 455(a).

It is a fact that judges have a duty to bite the bullet and make decisions they don’t like according to the law and the facts. And it is a fact that they do carry out that duty day to day.

But … there is also the appearance of impropriety. We can give Judge Walker the presumption that he said and meant “I will do my duty even if it means I live alone for the rest of my life”. But now people are saying that he did not mean it and are questioning the validity of the Court’s judgment.

Do you remember Kozinski recusing himself in the pornography case? I, personally, thought it was unnecessary, but the fact remains that the judgment by the subsequent judge was unimpeachable.

“From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors,” claimed a Feb. 7, 2010 op-ed article at the National Review Online. “Consider his series of controversial–and, in many instances, unprecedented–decisions,” the editorial went on. “Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.”

The op-ed continued, “Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

“Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than 7 million Californians who voted in support of Prop 8,” the article added, going on to read, “Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.”

Declared the editorial, “Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.”

The problem, of course, is that he is a gay man, resident in California, in a long-term relationship with another man. As such, he has a direct personal stake in the outcome of the decision –much as allowing a black judge who lived in the same Topeka neighborhood as the Brown family and who had school-aged children to preside over and decide the case in Brown v. Board of Education. Even if he would have made a decision that was unarguably correct and a masterpiece of legal reasoning, thee would still be the issue of the appearance (and reality) of his having a conflict of interest.

If it does go on the ballot again in 2012 I will vote against repealing Prop8…
JUST because one judge told me my vote don’t count.
Eventually the people might have accepted it.
Not this time, one man cannot tell 7 million Californians there vote is irrelevant.

Btw, i didn’t catch the typo first. someone else did in that thread. But if you are using an iphone to post, and you decide to talk about that old Saturday Night Live skit (and so-so movie) “The Coneheads,” be very, very careful you spell that correctly, 😉

You could also argue that homosexuality is not a problem in the Catholic church, but it is. No, a homosexual judge should not have ruled on this. I didn’t know he was, but that would explain his twisted logic. If this is a right, then polygamy is too. So is marriage between a person and animal, or inanimate object.

Judge Walker was clearly biased, and it was shown when he decided to have a trial despite the fact that there was a controlling precedent on this case (Baker v. Nelson) and the case had not been remanded to his court by the Ninth Circuit or Supreme Court.

The difference between Walker and the decisions made by almost any Justices on the current SCOTUS, especially the walking embarrassment that is Clarence Thomas, is that his decisions are legal, where as the eight current justices are almost all political hacks.

Walker was bound by the Supreme Court precedent Baker v. Nelson and the Ninth Circuit precedent Adams v. Howerton. the Supreme Court ruled on the applicability of precedent in Rodriguez de Quijas v. Shearson/American Express, Inc.

We do not suggest that the Court of Appeals, on its own authority, should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

The perogative to overrule Baker rests with the Supreme Court (just as the perogative to overrule Reynolds v. United States, Murphy v. Ramsey, Davis v. Beason, and Loving v. Virginia rests with that same Court). Similarly, the perogative to overrule Adams rests with the Supreme Court and the Ninth Circuit. It was wrong for Judge Walker to overrule Baker, just as it would be wrong for a judge to strike down an anti-polygamy law against a 14th Amendment challenge, despite Reynolds and Davis, or for a judge to uphold an anti-miscegenation law against a 14th Amendment challenge, despite Loving.

Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday.

If Judge Walker had wanted to marry another man, there was already a five-month window when he could have done so. So it’s not really correct to suggest that by ruling on this case he could give himself a right he did not previously have. Yes, if his ruling stands he can marry in the future, but the fact that he didn’t do so when he had the chance suggests that he didn’t rule the way he did simply in order to allow himself to marry. That pretty much undercuts the reasonable perception of partiality problem.

It is the role of a jury to be the trier of facts, not the judge. The only indisputable fact is that the amendment passed. The court should have either allowed this case to go to trial and leave the fact finding to the jury or it should have dismissed this at the summary. Marriage is a state matter not a federal question as the constitution presently stands.
The California AG ought to be impeached and removed from office for failing to defend this matter. Whether or not he personally agrees with the proposition is irrelevant, millions of qualified California voters expressed their support for this measure and voted for it. It is his job to defend state law and the state’s constitution in the courts his personal beliefs notwithstanding. As for the judge in this matter, he to should be impeached and removed for his highhandedness, as an example to the rest of the judiciary who fancy themselves as legislators.
I believe that gays ought to be able to get married, but this is a political process and should be done at the ballot box and not by highhanded judges who deem to know better than the voters and invent rights that are nowhere to be found in the constitution. Another approach would be to push for the ratification of the Equal Rights Amendment in the various state legislatures, a political process, and that amendment would incorporate the right to same sex marriage.

SPQR – Yes, as of today his decision “gives himself” a right he does not currently have. All I meant was, that Patterico’s original statement that [t]his is a right he did not have in California before yesterday was not strictly correct; and that the fact that Judge Walker had that right in the past, and chose not to exercise it, makes his hearing this case less unseemly than it might have been if he were truly in the position to create some brand new right that would benefit him.

In any case, I do reject the notion that his sexual orientation should have a bearing on whether he can or should hear this case, just as any judge’s status as a member of a minority group should not have a bearing on his or her qualification to decide constitutional questions that might affect that group.

All I meant was, that Patterico’s original statement that [t]his is a right he did not have in California before yesterday was not strictly correct; and that the fact that Judge Walker had that right in the past

He never had that “right” in the past. Judges are incapable on manufacturing “rights”. What happened was that judges, not the people, claimed that such a right existed. (A power which they do not possess) Then the people made it clear that it did not exist. Now a judge has one again told the people “yes, it does”.

The judicial process in this sordid affair has not been grounded in law.

My argument is not that the judge is predisposed to think a certain way because of his membership in a group. It is that he receives a direct benefit. So I think the Mormon analogy is inapt.

I agree it’s not a good analogy. There’s actually no logical reason for a Mormon to recuse himself. But if a Mormon ruled for Prop 8 his religion would have been all over the place in liberal commentary. As will the SCOTUS judges’ religion if it’s upheld there. See post #13 for example.

A minor clarification to something someone said above: Judge Walker was renominated by President George HW Bush. He was originally nominated by President Reagan, but his nomination was blocked by a cabal of Democrats who were upset because they believed him to be biased against gay people.

I’m more libertarian (and conservative, in the fiscal sense) so come down on the side of:

What business is it of the government to decide what a legitimate marriage is?

Of course, given politial realities: now that such a decision has been made, there better not be lawsuits against religious orgs (churches, pastors, etc.) who believe thay should not be forced to marry someone who does not meet the pastors/church’s definition of a moral marriage.

That’s the problem: each decision leads to another. Next thing you know, Nuns have to perform abortions (using taxpayer dollars).

Only Scalia has an independent and thoughtful bone in his body and he is more than willing to sell those principles down the river to make a political decision when he wishes (see Bush v Gore)

The political decisions there were the Florida Supreme Court’s. The SCOTUS ruled 7-2 the FL vote counting schema was unconstitutional after a prior reversal by a 9-0 vote a previous FL Supreme Court vote counting ruling. The 5-4 vote was on whether to let the FL Supremes continue the farce or end it. Sanders Sauls who actually heard the case ruled that there was no evidence there were any uncounted votes, based on the testimony of the voting machine manufacturer who said the machines could not make the kind of marks that they were counting as votes, unless there were multiple ballots stuffed in the machine.

The idea that Scalia’s decision was some abrogation of the constitution or that there were uncounted votes, other than military votes which were in fact uncounted, is now enshrined as part of the left’s parade of myths and hallucinations. So you’ll keep saying it. Don’t try to convince anyone here of that.

Subotai: agreed that the rule of law is important. But when the question is “what should the law be”, it seems to me that it is wrong to make that decision based on anger at a single individual rather than on the effects the law would have on the individuals most effected by it.

And then timmah burbled:At least now I get why so many conservatives opposed Sotomayor. It wasn’t because you wanted some color-blind society and feared it wouldn’t happen because of her “wise Latina” line; it’s because you believe it’s true! That judges are just part of tribes and will rule in favor of their “kinsmen” and you didn’t want some Latina up there making the rules.
— If “believe it’s true” means that we took her at her word, then you’re bang! on-target.

I don’t place any value at all on a woman’s or an ethnic minority’s views as a member of either group and indeed the first woman on the supreme court rejected that view, in a speech that then Sotomayor rejected with her famous “wise latina” comment.

The reason why about 50% of the judiciary should be female is because I am confident that if equality of opportunity prevails, that is what will happen. Ditto with all other groups.

SPQR

> I was extremely disapppointed at the circus manner in which he conducted this case, and the very poor written decision he delivered.

That’s a very good point. The sheer craptitude of his opinion makes this issue more salient. Did it stink because he was biased? Or is this just his normal level of quality.

This is what I wrote over at legal insurrection:

> First, let’s start with what I thought was the lamest part of the ruling: there is a fundamental right to marry (regardless of gender of the other). I put the second part in parenthesis, because the first part is the really laughable part. Um, no, there is no fundamental right to marry. I am not a fan of proposals to get the states out of the marriage business altogether, but if the libertarians who propose this got their way, nothing in the constitution would stop them from refusing to recognize any marriage at all.

> Second, yeah, those “facts” were pretty stunning. Like he declared that gay marriage will not harm straight marriage. Um, that is an opinion, not a fact. Now the judge can reasonably say this, depending on what the evidence showed:

> 1) The brief period in Cali, in which gay marriage was legal, did not appreciably weaken straight marriage.

> 2) Straight marriage has not been weakened in states where gay marriage has been legal.

> 3) there is no evidence that the long term effects of gay marriage will include a weakening of straight marriage.

> But you cannot predict the future and claim it is a fact.

> Likewise he states that being gay is definitely not a choice. And you can’t convince a gay person not to be gay. Look at page 74.

> So apparently as a matter of law, bisexuality doesn’t exist.

> Heck, not just that, but as a matter of science.

Certainly if you are in a situation where people might be suspicious of your biases, common sense means you better be on the ball more than usual. But as a connoisseur of legal writing, this is just awful.

> If Judge Walker had wanted to marry another man, there was already a five-month window when he could have done so

Aren’t you assuming he had someone in his life that was interested in marrying him, at that time?

Cuban

> It is the role of a jury to be the trier of facts, not the judge.

Actually, no, not in this case. I believe the case was what we call equity—that is for an injunction. When seeking an injunction, there is no right to a jury trial, although sometimes a jury is used to find facts.

> The California AG ought to be impeached and removed from office for failing to defend this matter.

I am of two minds about that. Imagine if Brown went through the motions of defending it, but in reality tanked the case. would that have been better. In some ways I am glad he was open in his animosity and that allowed other people who wanted to save the law to step in. and I say that as a harsh critic of this decision.

California virtually never impeaches judges. State judges have to be reconfirmed by popular vote every so many years, and there was one high-profile firing of several state supreme court judges via that process.

But that’s not the same as impeachment. It’s closer in nature to a recall, but it’s not even that: it’s just failure to re-elect at a regularly scheduled re-election.

(And, possibly more to the point, Judge Walker is a federal judge and therefore immune to the voters. Only Congress could impeach him, and that’s not going to happen.)

I think your framing of the argument assumes the result. When you say With this decision (at least once the stay is lifted), Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday. The rights of a heterosexual judge would not have changed. this is wrong, and obviously wrong. Before this decision, neither man had the right to marry another man, and both men had the right to marry a woman. The difference is their relative desire to exercise these rights.

If you express the right as the right for a man to marry a woman or the right for a man to marry a man, both men had the same rights and there was no equal protection argument. It is by expressing the right as the right to marry the person of your choice that an equal protection argument can be introduced.

But, the reason for the ban on incestual relations is based on procreation, which would not apply in a brother-brother, or sister-sister, relationship.
I would think there is a very basic “equal protection” question here.

AD – Rtr/OS: ah, but administrative efficiency has already been held to be a rational basis. So you have to get your family-relationship discrimination out of rational-basis review for your argument to work.

> denying the right on the basis of biological family relationship almost certainly draws rational basis review

So did gay marriage. How did that work out?

> the state has no problem articulating a rational basis for prohibiting incestuous opposite-sex marriages

On what basis? Because its not the avoidance of recessive genes. That’s a popular myth. Read the statutes. Most states also ban incest between people related by adoption or marriage (i.e. stepchildren). Greg Brady cannot marry Marsha Brady, even though genetically they are strangers. Going to the show different strokes, the same can be said of Kim and Willis. Willis was adopted by Kim’s father, therefore in many states its illegal for him to marry her.

So what really drives these bans on incest? The answer is that the state sees these relationships as messed up. But if deciding a relationship is unhealthy, then why can’t the people of California decide that homosexuality is unhealthy, too?

> administrative efficiency in treating all incestuous marriages the same.

The state had no trouble administering a ban on gay marriage, why not a ban on heterosexual incestual marriage. Indeed, it would seem the administrative costs are greater in enforcing a ban than in not. Its harder to determine parentage, than gender.

Also, let’s not forget that under these laws brothers not only can’t marry, but they also can’t even have sex and will go to jail if they do. Isn’t that problematic under Lawrence?

when the question is “what should the law be”, it seems to me that it is wrong to make that decision based on anger at a single individual rather than on the effects the law would have on the individuals most effected by it.

It seems to me that under our system of government, the question “what should the law be” is supposed to be answered by the people and their elected representatives rather than by judges.

This peculiar theory that judges are qualified and empowered to pass judgment on the “rationality” of the peoples decisions has no basis in law.

Actually in theory the tiers of review make a lot of sense. The problem is that Walker didn’t follow them.

First, let me start with something basic. In the eyes of the 14th amendment to discriminate is to classify. And classification happens all the time. For instance, the courts regularly classifies people as criminals and being so classified treats them differently from innocent people—you know, by sending them to jail, etc. So the law discriminates all the time. And its usually okay. Hot dog venders can be treated differently from hamburger venders and so on.

Now, when the classification is about race or ethnicity, the supreme court says that because of the fact that the 14th A is specifically written to outlaw racism, and a number of other factors, all discriminations based on race are inherently suspect. That doesn’t mean that it is never legal, but the discrimination must be narrowly tailored to serve a compelling purpose. It is correctly observed that the courts almost never uphold such classifications. Which only makes sense, because there are few relevant differences between the so-called races.

Then there is the intermediate tier. This is where there is a lot of prejudice, a lot of cases where discrimination is motivated by animus. But there are also some real differences that justify different treatment now and then. I know classifications based on gender fall into this category, but I don’t remember if any others do. The test is that the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.

And then literally everything else falls into rational basis review. And in rational basis review, you are NOT supposed to do a searching analysis of the validity of the reasons. The test is whether the challenged classification is rationally related to serving a legitimate state interest. And the test is even looser than it sounds. The courts have said that you don’t even have to prove it does actually advance that interest, only that you can imagine some state of the facts that makes it rational. It’s a loose test and most lawyers will say that most of the time, if its rational basis, the state law prevails. Which only makes sense. When a state discriminates between a hot dog vender and a hamburger vender, we should presume that they are doing it for a good reason.

To be blunt, if rational basis was applied as it normally is, proposition 8 would have passed this test.

Now to be fair to judge walker, he is not the first to pretend to apply rational basis and then not really do it. for instance in Cleburne v. Cleburne living center they supposedly applied it to a zoning ordinance that would have keep a house of retarded people out of an area. but while pretending to apply rational basis review, the supreme court decided that since the law was motivated by hatred of the retarded, it was illegal. And the supreme court did something similar in Romer v. Evans in regard to an anti-gay initiative.

And there is a nice picture of Mildred and Richard Loving, of Loving v. Virginia. Which is the most perfectly named case in supreme court history, given that this was the case that struck down race restrictions in marriage. So Virginia was literally opposed to the loving that the Lovings were engaged in.

For instance, many incorrectly believe that the ban on incest is about preventing children with recessive genes. If you read the statutes, you will learn that many states also ban relationships between people related by marriage (as in, step brothers and step sisters) or by adoption. That is in many states Greg Brady cannot marry Marsha Brady, and to go to Different Strokes as a metaphor, Willis can’t marry Kim, because Kim’s father adopted Willis as his son. In both cases, Greg and Marsha, Kim and Willis, the people are genetic strangers to each other, presenting no greater danger of bringing out recessive genes, but not only to we say they can’t marry, but we also say they can’t even have sex. And if they do, we will throw them in prison.

And no one seriously questions the constitutionality of that.

Of course in academic circles we dress it up. Oh, no, we would never be so provincial to say that we morally disapprove of sleeping with your adopted daughter. No, we just feel that it is psychologically unhealthy. But that strikes me as a difference without a distinction. And it doesn’t matter, anyway. If those relationships can be forbidden because we feel they are psychologically unhealthy, then why can’t the people of California say that gay relationships are psychologically unhealthy, too?

That is why I keep tossing out the example of gay incest, to make you think about what the ban on incest is REALLY about.

What if he had been an evangelical Christian? Do you think the plaintiff’s would have objected? My guess is that it would have been a big deal and there would have been a lot of pressure for him to recuse himself.

So, MattJ, if a man expresses a desire to marry his brother, does he now have that right?

AD – RtR/OS! – I would assume not, just like a man cannot marry his sister; but either way, it would have nothing to do with whether or not he was gay, and so I don’t believe equal protection would apply.

MattJ, any classification can be challenged under Equal Protection – what changes is the applicable test. The rationale that marriage is a fundamental right – no matter how one tries to redefine “marriage” – is what undermines any restrictions at all.

The decision will be made by 9 justices and will probably be 5-4. The 9th circuit will be a joke, much like Walker’s. Although you gotta give him credit for cranking out so many words rationalizing his predetermined beliefs. Oh, wait was he gay? Shocked I tell you.

SPQR – whether marriage is being redefined or not is, I think, the crux of the debate.

Many (most?) SSM supporters would tell you marriage is about two people committing to build a new life together because of their love for one another, and that as far as they can tell, that’s what it’s always been about – and all the stuff coming from SSM opponents is a post-hoc rationalization.

I understand that SSM opponents would disagree with that characterization.

But that difference of opinion is really the crux of the political debate.

The proposition is that a gay judge who overturns Prop 8 enjoys a direct benefit, because now he can marry is partner. The suggestion is that therefore a gay judge has the appearance of bias, where a straight judge does not, because the straight judge gains nothing.

Doesn’t this line of argument undermine the premise of Proposition 8? After all, its proponents argued in promoting it and defending it in court that it serves to defend marriage, and that the very institution of marriage is weakened by gay marriage.

If this is so, then isn’t a straight judge — married or not — laboring under a bias? After all, if he’s married, he’s defending the sanctity of his own marriage — an appearance of bias. If he’s not married — well, he might get married. Do we have evidence he will? No. But we don’t have evidence Judge Walker wants to get married either.

Are there ANY cases in which a court has found that the appearance of impropriety requires judicial recusal because of the judge’s membership in a ethnic, national, gender, sexual preference, or religious group?

alpharel, while I concede and may even support the aspirational view that that is what marriage ought to be, I find that I can’t take seriously the view that that definition of marriage is anything but an invention younger than I am.

Ken, no your attempt to make an equivalent to the heterosexual fails utterly. As has been pointed out repeatedly, the issue of the interest of the judge to the outcome does not occur, because nothing in the case alters the status of the heterosexual judge himself/herself.

Does that analysis find any support in the cases analyzing the obligation to recuse?

Also, I think you missed part of my point. I think you can make a perfectly good argument that a straight judge ruling on Prop 8 has no real skin in the game. I just think that argument is not consistent with a substantial chunk of pro-Prop-8 rhetoric.

aphrael, I’m 50 years old and I know that before the ’60’s, there was not a public debate about whether or not homosexuals could marry or a pairing of two homosexuals would be viewed as a “marriage”. There was no time before 1960 when American culture or law recognized such a definition of “marriage” and none of the main Western ideological or cultural sources for American society did so either – not even those versions which accepted homosexuals to greater or lesser degrees.

SPQR: well, before the 1960s, in our culture at least, homosexuality was not accepted at all. It was so far outside the range of acceptable that the idea of openly gay people being federal judges would have seemed absurd.

But that has changed; open homosexuality per se is no longer a bar to participation in civic life.

Given that it has, what does that mean for marriage?

It seems to me that if marriage was always about two people who were in love committing to building a new life together, then once you accept that it’s possible for two men (or two women) to be in love, it follows that marriage should encompass their relationship, too.

If, on the other hand, marriage was about something else, then maybe it doesn’t follow.

What irks me about the debate is that, from my perspective, marriage was always about two people who were in love committing to building a new life together … but once the idea was out there that two men could be in love and wish to build a new life together, the definition of marriage was changed so that instead it became about two people having a structure to raise children together (even though procreation had never been a requirement, and nobody would ever have thought to challenge two 80-year-olds getting married on the grounds that they couldn’t have children).

Now, I think that because, in my world, marriage has always been about people who love each other committing to each other … so other explanations appear to me to be post-hoc rationalizations. That said, I would prefer to believe my opponents to be acting in good faith – so i’m forced to conclude that, as bizarre as it seems to me, other people live in a world in which marriage is about something else.

aphrael, with respect, my friend, you have some ideas there that are really not true. E.g., “…even though procreation had never been a requirement …” this argument has always greatly annoyed me – we’ve never had a requirement of fertility for marriage but (1) our society had no real method of determining fertility until recent medical advances and (2) at many times and places, our society and its antecedent societies held infertility as grounds for annulment.

SPQR, both of those are fair points, but I would return with my observation about 80-year-olds: even once it was understood that an 80-year-old woman could not give birth, no law would have prevented an 80-year-old woman from marrying, nor would there have been objection to it (except, perhaps, from her potential heirs who might be thereby disinherited).

> The proposition is that a gay judge who overturns Prop 8 enjoys a direct benefit, because now he can marry is partner. The suggestion is that therefore a gay judge has the appearance of bias, where a straight judge does not, because the straight judge gains nothing.

First, the legal standard is whether there is a reasonable question to his impartiality.

Second, you pretend that there is only one justification for banning gay marriage.

Third, your argument is circular. If gay marriage harms straight marriage then the straight judge is biased. But if that is the case, then I guess a ban on gay marriage would easily pass the rational basis test, right?

Fourth, you are confusing the institution of marriage with individual marriages. For instance, if people stop getting married, for instance, the institution suffers. But no actual marriages are harmed. And that is one theory of how gay marriage could harm straight marriage.

Fifth, pretend that all bias is created equal. You equate a direct, tangible, and obvious benefit to a harm that is indirect, intangible, and indeed whose very existence is heavily disputed.

For instance, take the suits involving Obamacare. Now suppose there were two judges you might choose. The first owns stock in Kaiser Permanente (a good sized health care company). The second doesn’t. But of course as a citizen of the republic he is most likely eventually going to need health care. And if Obama destroys or seriously degrades the health care system he might suffer. So he is biased! OMG!

Well, maybe so, but the bias is nothing compared to the bias of directly owning stock in a health care company that stands to financially gain from the outcome of the litigation and indeed the bias depends on imputing to him a certain estimation of the likelihood of future events.

Further, alphrael, even ancient Western societies that accepted open or at least acknowledged homosexuals such as Greek and Roman, did not construct a marriage equivalent.

(Rome is probably a poor example – for while Rome had acknowledged homosexuals, Cicero’s friend Atticus being one of the most famous, Roman Legion law proscribed homosexual conduct and no one could enter into Roman political life without some time in the legions.)

Aaron, I can’t really tell if you think I was actually arguing for recusal or not.

Recusal of federal judges is governed by statute. That statute has been interpreted hundreds of times by federal courts. Surely, if group membership supports recusal, someone can cite a case for the proposition.

If the SSM supporters are as dedicated to marriage as they keep saying, they should also support ending no-fault divorce. “Till death do us part”, baby!

The leadership would do that.

For the leadership, it is SSM above all, even if it means judges twisting the meaning of constitutional provisions to suit their policy preferences (which, if tolerated, would be a greater threat to gay rights than Proposition 8 was).

Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?

Well, a black person is black based on skin pigment. There ain’t a lot of free choice and free will involved in that. By contrast, a gay person is homosexual or, probably in most cases, bisexual, based on behavior. A lot of free will and free choice is involved in that.

A better analogy would be if Vaughn Walker were a big fan of wife-swapping/swinger or nudist clubs and was presiding over a lawsuit filed against a proposition that restricted sex clubs and nudist camps.

even ancient Western societies that accepted open or at least acknowledged homosexuals such as Greek and Roman, did not construct a marriage equivalent.

I mentioned previously that the ancient Greek philosopher Plato apparently was accepting of homosexuality earlier in his life. But he started to express disapproval of it as he grew older.

He appears to have been similar to a modern-day, oh-so-sophisticated hipster who grows more cynical about tolerance for tolerance’s sake when real-life contradictions become obvious. Somewhat akin to the way that certain teenagers, once they grow up and have kids of their own, start sounding just like the parents they originally rebelled against.

This issue is not about “rights”. Registered domestic partnerships (California Family code 297-299.6) grants same-sex couples all the same rights and obligations granted to married couples under California Family code.

Matter of fact the registered domestic partnership law discriminates against me being in a different sex relationship and under the age of 62. Maybe I should sue!

ML: as I understand in re Marriage Cases, you should win that lawsuit. ISTM that the DP rules discriminate against straight couples in exactly the way that my pro-SSM allies say the marriage rules discriminate against gays; I don’t think that discrimination can withstand strict scrutiny.

ML: along similar lines, I’ve been known to argue that young straight men should sue to get DADT overturned on the grounds that, in effect, gay men are immune to being drafted, and that this unfairly discriminates against straight men.

> That statute has been interpreted hundreds of times by federal courts. Surely, if group membership supports recusal, someone can cite a case for the proposition.

Actually its not a statute, but the regulations. Still they are mandatory.

And I don’t know that there are hundreds of cases in the casebooks interpreting them. I would tend to assume that most disqualifications occur without prompting, without an opinion. Instances like Scalia writing an opinion justifying his refusal to disqualify himself in that case people he once went duck hunting in proximity of dick cheney is the exception not the rule.

The fact is caselaw searches cost money, and I am not going to spend thousands of dollars to satisfy your curiosity. Besides, to be blunt, I don’t even know how we would find those cases in the database. What search would turn up when membership in a group means that the decision directly affects your personal rights? And of course the ability to marry is a tad different than, say, equal access to a golf course, or even a mere financial interest.

You are trying to construct a “dog that didn’t bark argument” when there is no reason to believe the “dog” here would “bark.”

But hey, if you want to spend $5,000 doing the searches, knock yourself out.

Incorrect. It’s a statute. 28 U.S.C. section 455 to be exact. It’s easy enough to see how many cases have cited it; look at the annotated statute, either on Westlaw or Lexis or in an old-fashioned annotated code book (haven’t seen one of those in maybe ten years). Many of them analyze, in detail, the specific alleged grounds for recusal, and whether they are sufficient.

How to find them? Well, a Westlaw search would be fairly easy to construct. (recuse recusal) /p (gay lesbian homosexual “sexual orientation” “sexual preference”), for instance. Or you could go the old fashioned way, and look for a subject heading in the annotated code.

It took me maybe 45 seconds to pull up Macdraw, Inc. v. CIT Group, 138 F.3d 33 (2nd Cir. 1998), which involved the Second Circuit upholding sanctions against lawyers for miscellaneous douchery including demanding recusal based on a judge’s race (also included: insinuations that the judge was part of a malign Clinton-Asian cabal.) Quoth the Second Circuit:

“The fact that a political controversy may be perceived by some as involving racial or ethnic aspects is not grounds for questioning in an entirely separate matter the impartiality of a judge of that race or ethnicity toward attorneys who are also involved in the controversy. Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge’s impartiality. See United States v. El-Gabrowny, 844 F.Supp. 955, 961-62 (S.D.N.Y.1994) (refusing to answer questions posed regarding judge’s religious affiliation and connection, if any, to Israel); Blank v. Sullivan & Cromwell, 418 F.Supp. 1, 4 (S.D.N.Y.1975) (sex or race is improper basis for recusal); see also Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs, 388 F.Supp. 155, 163 (E.D.Pa.1974). A suggestion that a judge cannot administer the law fairly because of the judge’s racial and ethnic heritage is extremely serious and should not be made without a factual foundation going well beyond the judge’s membership in a particular racial or ethnic group. Such an accusation is a charge that the judge is racially or ethnically biased and is violating the judge’s oath of office.”

In non-lawyer, that’s “STFU, noob.”

My point is this: 1. the law about demanding that judges recuse themselves in racially or religiously charged cases based on their race or religion is well-established. And none of it supports recusal. 2. In a system that relies on analogy and precedent, that doesn’t bode well for recusing gays based on gayitudeness. 3. Lots of people oppose SSM, or at least oppose the sue-em-all route to SSM. Many of these people are lawyers. Some are very smart. So if there are any cases supporting recusing gay judges on SSM cases, why hasn’t anyone cited them?

Perhaps recusal advocates are hoping someone will make new law.

Anyway, I’m not sure SSM opponents — or opponents of the litigation route to SSM — would necessarily like the genie they let out of the bottle if they found a way to establish gay judges have to recuse themselves from SSM cases because they might give themselves the right to marry. It would be a precedent with many potential further applications.

Ken, the paragraphs came through just fine. There’s a charming bug in the implementation of the website software which causes them to vanish for you but appear for everyone else; when you reload the page, they’ll show up for you, too.

Daleyrocks: the fact that it doesn’t do it for you is, I think, independently interesting.

For me, the line is pretty clear: basically nobody who objects to same sex marriage would object to two 80 year olds marrying … therefore inability to procreate is not actually the reason that they object to two men marrying.

Or, if it is, there’s something else at work – something which makes the two eighty year olds an acceptable exception while the two men aren’t.

Based on what you’re saying, it’s not clear; the two dots don’t connect in the way they do for me.

I find that curious – I think you’re arguing in good faith and are a reasonable man, but something which is blindingly obvious to me isn’t to you.

Are we coming at it from different assumptions? Is there something I’m not seeing? Is there something you’re not seeing?

“Daleyrocks: the fact that it doesn’t do it for you is, I think, independently interesting.”

aphrael – I meant only with respect to the procreation argument in terms of defining marriage, not the entire debate. Solely pointing at a couple of 80 year olds and saying, hey, they can’t procreate, so obviously procreation can’t be the purpose of marriage is not the right way to address that argument. That’s why I suggested stats.

Procreation…
At times throughout history, the lack of an ability to procreate was grounds for divorce or annulment (taken to extreme by Henry VIII, but not by him alone).
This was mostly an issue in the Ruling Classes where to have an heir was of some import.
To divorce procreation from marriage would be an overturning of hundreds, if not thousands, of years of “Western Civilization” that has led us to this moment.

This seems to be another low-point moment derived from the Sixties and the mantra of “Sex, Drugs, and Rock-and-Roll” which has not certainly served society well.

By the way, I find it amazing that this is even a question. For instance, let me quote from Federalist #10:

> No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.

Of course constitutional law and history geeks will recognize the origins of that phrase, and its significance, but I just find it amazing. Judge Walker is deciding whether to grant to himself the right to marry. I mean suppose the judge stops staying the ruling and then walks into the nearest state courthouse and asks for a certificate of marriage so he can marry a boyfriend. If the clerk refuses, the judge threatened them with contempt citing his own injunction. But its wrong, wrong to say the judge has an interest in the outcome of this case.

Finally ask yourself a simple question. When David Boies learned he got a gay judge, do you think he was indifferent? Or do you think he at least thought, “score!” or something to that effect. But its unreasonable to question the judge’s impartiality.

This “ruling” demonstrates everything that is wrong with legislating from the bench. And it has nothing to do with him being teh ghey. It has to do with him favoring “expert” social science testimony over the proscribed process.

For me, the line is pretty clear: basically nobody who objects to same sex marriage would object to two 80 year olds marrying … therefore inability to procreate is not actually the reason that they object to two men marrying.

Or, if it is, there’s something else at work – something which makes the two eighty year olds an acceptable exception while the two men aren’t.

Based on what you’re saying, it’s not clear; the two dots don’t connect in the way they do for me.

I find that curious – I think you’re arguing in good faith and are a reasonable man, but something which is blindingly obvious to me isn’t to you.

Are we coming at it from different assumptions? Is there something I’m not seeing? Is there something you’re not seeing?

It is indeed blindingly obvious and yes, Aphrael, with respect, you are not seeing something: specifically, centuries of precedent in which (as any lawyer who has dealt with probate and trusts and all that happiness can tell you) the law presumes that any two spouses, being defined as a man and a wife, vir et ux, are presumptively fertile in law. This is so regardless of age or debility, and is a part of the bundle of presumptions that have accreted to marriage as a legal state, along with, for example, the presumption of paternity, the doctrine of issue en ventra sa mere (and well do I remember spending one summer working for Dean Henneman on the then Restatement’s amendments), and so forth. This is the way in which we have evolved a law of marriage that intrudes as little as possible into private bedrooms while still preserving the purpose of marriage as a legal concept. And what is that? Quite simple. The only justification for granting spouses all the privileges they are granted, from tax status to the spousal communication privilege, and for imposing on them all the onerous, more-than-fiduciary duties they owe one another, is that marriage is the means whereby the estates, or portions of the estates, of two sets of mutually hostile in-laws, are merged, preserved, and enhanced for descent and distribution to the grandchildren who are legally presumed and expected to come out of the marriage.

Centuries of common law and careful statutory framing are at stake here, in areas as diverse as trusts, probate, principal-agency law, and criminal procedure, and one wanton stroke of a pen in an intellectually contemptible, intellectually dishonest, and shoddily written opinion (whatever you think of the result. I don’t care about the result: I care about the process, because it is procedure that determines that we are governed by law, not by men) – one stroke of a pen really mustn’t be allowed to do all this damage.

therefore inability to procreate is not actually the reason that they object to two men marrying.

Procreation is way down the list on what makes most people cringe at homosexuality. When I was quite young (still in elementary school), I recall watching some TV news show about 2 guys being gay. At the time I was innocent enough to have only a vague idea of the specifics of sexuality. Yet I still recall being leery and, yep, rather repulsed by what such behavior implied or related to. Moreover, I was raised in a rather non-religious household, so theology had little bearing on my reaction.

Markham – you have an interesting point about the presumption of fertility. I’ll have to think about it.

I disagree that the only justification for spousal privilege is the management of estates for the purpose of distribution to issue. Particularly in the case of the marital communication privelege, I find it much easier to conceptualize that the point is to recognize that humans in intimate relationships form bonds which they will value more highly than their connection to the outside world, and to recognize that the formation of such relationships is good for social stability and the happiness and welfare of the population, and that it should be protected.

It’s an argument that marriage isn’t really about procreation. Which isn’t sufficient to establish a case for same-sex marriage by itself – marriage not being about procreation doesn’t per se mean that same sex marriage is desirable. My side needs something more – but the arrow is a necessary accoutremant to the quiver, particularly because the reason for not allowing gay marriage is that marriage is about procreation and gays can’t procreate has recently become the most prominent legal argument from the anti-SSM side.

However, the idea that marriage is about procreation is not damaged by the idea that old people marrying is accepted. This is a large cultural idea about a father and a mother spending their lives together. In this culture, men and women, even those who can’t have kids, can try to get as close to a nuclear family as they like.

I’m a big believer in the nuclear family, a bigger believer in the government staying out of personal affairs, and a bigger believer that when a constitution is amended by the people, a judge can’t overrule them. It’s kinda a mess, then.